COVID-19 and Statutes of Limitations: Legal Underpinnings of the United States Judicial Response to the Pandemic
The COVID-19 pandemic continues to disrupt everyday life in the United States and around the world, and state and federal court systems are not immune to the upheaval. In light of this, courts have issued orders attempting to respond to the emergency. In addition to measures seeking to limit person-to-person contact within the judicial system, some courts have further sought to toll statutes of limitations. This Legal Update evaluates the orders affecting statutes of limitations that have been issued and examines the legal foundations for such actions. It then discusses why the doctrine of equitable tolling should not be relied upon by potential litigants to save time-barred claims following the end of the emergency.
To date, there has not been a common approach taken by federal courts across the United States, though draft legislation promoted by the U.S. Department of Justice would have Congress pause the federal statutes of limitations for criminal investigations and civil proceedings during national emergencies “and for one year following the end of the national emergency.” For various reasons, the package put forth by the DOJ is unlikely to become law—at least in its current form. In the absence of nationwide guidance, individual federal district courts have begun to issue their own orders concerning statutes of limitations. Some, including the U.S. District Court for the Middle District of Louisiana, have issued orders suspending the statute of limitations – in that case until April 13, 2020. Others, such as the U.S. District Court for the Eastern District of Virginia, have done the opposite, expressly declining to toll statutes of limitations.
Of course, state-law claims are typically governed by state limitations periods, even in federal courts. Many states have been issuing their own orders, but their details vary. On March 20, 2020, New York Governor Andrew M. Cuomo issued an executive order tolling statutes of limitations until April 19, 2020. The order extends “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state.” Similarly, a March 17, 2020 order issued by the Iowa Supreme Court tolled “any statute of limitations, statute of repose, or similar deadline for commencing an action in district court” until May 4, 2020, and the Supreme Court of Oklahoma has issued an emergency order that, “[s]ubject only to constitutional limitations, all deadlines and procedures whether prescribed by statute, rule or order in any civil, juvenile or criminal case, shall be suspended for 30 days from the date of this order.” The Oklahoma order also explicitly tolls the statute of limitations in any civil case for thirty days starting March 16, 2020.
In contrast to those orders, which appear to toll any limitations period that is currently running, the Tennessee Supreme Court has tolled, until April 6, only those deadlines, including statutes of limitations, that otherwise would have expired between March 13 and April 6, 2020.
Some states have authorized case-specific extensions. On March 13, 2020, the Supreme Court of Texas issued its First Emergency Order permitting judges to “extend the statute of limitations in any civil case for a stated period no later than 30 days after the Governor’s state of disaster has been lifted. The Rhode Island Supreme Court issued an order on March 17, 2020 stating that the courts would entertain “extension to applicable statutes of limitations necessitated by the current health crisis … thirty (30) calendar days from the date of this Order.” It is not clear what factors judges are to consider in deciding such requests (or whether judges are expected to rule sua sponte) or what standard of appellate review might apply (i.e., whether the decision is treated as discretionary).
California law allows the presiding judges of its 58 county-level superior courts to petition the Chief Justice of the Supreme Court of California for an emergency order to support their local needs. As a result, California is currently covered by a patchwork of over sixty judicial emergency orders, including orders issued by 53 superior courts, the six appellate districts, and the Supreme Court. To date, orders affecting statutes of limitations have been issued at the superior court level with the orders designating certain date ranges as holidays for the purposes of computing time. Under California law, this has the effect of tolling statutes of limitations until the “holidays” have passed.
Different superior courts have employed different date ranges for this purpose, meaning that the length that statutes of limitations have been tolled currently varies among superior courts. Some, including Los Angeles and Humboldt Counties, used short date ranges designating days between March 17th and 19th as holidays. Those orders may be supplemented as the disruptions continue.
On the other end of the spectrum, the superior court in Tuolumne County designated dates falling between March 23, 2020 and April 22, 2020 as holidays. Orders issued by the superior courts in Calaveras, Glenn, Kings, Mendocino, Santa Cruz, and Sutter counties have not included provisions affecting statutes of limitations, and there have been no emergency orders issued in Alpine, Lassen, Modoc, Mono, and San Benito counties.
Authority for tolling orders
Many state statutes expressly grant the authority to issue these tolling orders. In New York, for example, tolling required an order pursuant to New York’s Executive Law which allows the governor to temporarily suspend or modify “any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency.” (N.Y. Exec. Law § 29-a (McKinney)). Other states have vested this power in the chief justice. Such states include Delaware (Del. Code Ann. tit. 10, § 2007 (West)), Hawaii (Haw. Rev. Stat. Ann. § 601-1.5 (West)), New Hampshire (N.H. Rev. Stat. Ann. § 490:6-a), and South Dakota (N.H. Rev. Stat. Ann. § 490:6-a).
California’s more decentralized approach is codified in California Government Code § 68115, which allows the presiding judge of a superior court to request that an emergency order be issued by the Chairperson of the Judicial Council. In relevant part, that order may
[d]eclare that a date or dates on which an emergency condition, as described in this section, substantially interfered with the public's ability to file papers in a court facility or facilities be deemed a holiday for purposes of computing the time for filing papers with the court under Sections 12 and 12a of the Code of Civil Procedure. This paragraph applies to the fewest days necessary under the circumstances of the emergency, as determined by the Chairperson of the Judicial Council. Cal. Gov't Code § 68115 (West).
Sections 12 and 12a of the California Code of Civil Procedure apply to statutes of limitation generally. See Deleon v. Bay Area Rapid Transit Dist., 658 P.2d 108, 111 (1983).
Federal courts have no statutory basis to toll statutes of limitations during emergencies. But there is authority for the exercise of inherent equitable powers to do so on a case-by-case basis. See e.g., Buckley v. Doha Bank Ltd., 2002 WL 1751372, at *2 (S.D.N.Y. July 29, 2002) (“Because the equitable tolling doctrine is based on the general principles of equity and fairness, the unprecedented circumstances of the World Trade Center disaster and subsequent Court closure warrant relief from a strict application of the 90–day statute of limitations in this case.”).
Risks of Reliance on Equitable Tolling
Courts have found that “where Congress has not acted to preclude equitable tolling, it intended for equitable tolling to apply and to be employed consistent with standard equitable concepts and governing precedent.” Smith v. Davis, 2020 WL 1316832, at *7 (9th Cir. Mar. 20, 2020). A more complicated question arises when Congress has not explicitly addressed equitable tolling in a given statute. This circumstance requires courts to determine whether they may permissibly read an implied equitable tolling provision into the statute without frustrating congressional intent. Acierno v. Barnhart, 475 F.3d 77, 81 (2d Cir. 2007) (quoting Bowen v. City of New York, 476 U.S. 467, 480 (1986)) (“In order to read an implied equitable tolling provision into a statute that contains no such express provision, ‘[w]e must determine ... whether equitable tolling is consistent with Congress’ intent in enacting’ the statutory scheme.”).
Even if equitable tolling is available, litigants must still show that they are entitled to it—even in the face of a global public health crisis like COVID-19. The Supreme Court has required two elements to support equitable tolling: (1) that the litigant has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.1 Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. 750, 756 (2016) (quoting Holland v. Florida, 560 U.S. 631 (2010)). The Court noted that these elements should be considered together when evaluating whether equitable tolling is appropriate. Id. (“[W]e have expressly characterized equitable tolling’s two components as “elements,” not merely factors of indeterminate or commensurable weight.”).
To date, there has been no unified response from the federal judiciary or Congress regarding the tolling of statutes of limitations. This fact, coupled with the high and uncertain bar imposed by courts on litigants seeking equitable tolling of their claims, means that potential litigants should plan to bring federal claims within the time frames specified by the statutes of limitations of those respective claims.
State and federal courts continue to issue new orders concerning COVID-19 on a daily basis. Accordingly, any questions concerning statutes of limitations and tolling should be discussed with counsel. For specific questions about the tolling of statutes of limitations amid the COVID-19 pandemic please contact Matthew Ingber, Christopher Houpt, Allison Zolot.
1 The Supreme Court developed this two-part test in Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549 (2010), a habeas case. Though it again turned to this test in Menominee Indian Tribe, the Court noted in a footnote that Holland “is a habeas case, and we have never held that its equitable-tolling test necessarily applies outside the habeas context. Nevertheless, because we agree that the Tribe cannot meet Holland’s test, we have no occasion to decide whether an even stricter test might apply to a nonhabeas case. Nor does the Tribe argue that a more generous test than Holland’s should apply here.” Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. 750, 756 fn. 2 (2016).
